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FREQUENTLY ASKED QUESTIONS AND ANSWERS

Can we conduct an investigation ourselves?

While workplace investigators are experts, there is of course some added cost in retaining a professional. This often leads many employers to believe that they can handle an investigation themselves, or that it can all be ‘kept quiet’ by being dealt with internally.

This can be a risky and dangerous position depending on the circumstances. While larger employers may have full-scale HR departments that can effectively conduct an arms-length investigation, this is not most workplaces. In many instances, incidents involving two parties consist of one party who has been with the employer for years (or even decades), and an accuser who is newer to the team. Given those circumstances, it is nearly impossible for an employer to conduct an investigation that appears unbiased, or one where the complainant feels as though they will be heard adequately. 

If an employee is disciplined or dismissed because of the results of an investigation that you conducted yourselves, and that employee proceeds to take legal action, their lawyer will be looking through every piece of your investigation to see if it was conducted fairly. An investigation that was not impartial could easily lead to a claim for bad faith, and an allegation that you did not have sufficient information to conduct any discipline. In the world of workplace investigations, this is akin to throwing gasoline on a fire.

Anyone who conducts an investigation should have training on how to do so. Furthermore, they must not have any actual or perceived bias. Lastly, the most practical consideration: while many organizations tend to assume that “HR will do it”, most HR Professionals we know are extremely busy and do not have the capacity to handle an investigation efficiently. Since investigations should be handled quickly, employers should not ‘wait around’ until someone internally has time to, or capacity to, handle the issue. Calling in outside professionals quickly can help employers stay above board.

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Rudner Law
15 Allstate Parkway
Suite 600
Markham, ON
L3R 5B4

Phone: 416-864-8500
Text: 416-864-8500

Email: info@rudnerlaw.ca

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